June 27, 2006
Consumer Product Safety Commission Chairman Hal Stratton Resigns Effective July 15
According to a washingtonpost.com article, Hal Stratton, the chairmanof the Consumer Product Safety Commission, has resigned, effective July 15. A former New Mexico Attorney General, Stratton has been CPSC chairman for four years. Nancy Nord, a Commissioner, will be the acting chairman. By Caroline Mayer.
More Guidant Product Safety Alerts
Guidant Corporation's new owner, Boston Scientific, has announced the recall of 49,800 pacemakers and implantable cardioverter defribrillators because a small number of them may malfunction. Of that number, 27,200 have been implanted in patients. The remainder are in the inventories of hospitals or sales representatives. No deaths have been reported due to the devices that are the subject of this lastest recall. Last summer, however, Guidant recalled 300,000 pacemakers and ICDs because a small number could potentially fail and seven deaths have been linked to some of those devices that failed to work properly. Guidant's handling of last summer's recall has been subject to considerable criticism, inquiries by Congress and the U.S. Department of Justice and hundreds of lawsuits. Boston Scientific says that it is working to remedy Guidant's problems - a task that could take up to 18 months - and that "this is not the last recall." See Janet Moore's story in the Minneapolis Star Tribune.
Even Short-term Vioxx Use May Increase Heart Risk
The New England Journal of Medicine has published a correction saying that it does not take 18 months of Vioxx use to increase the risk of heart attacks. A new interpretation of the study originally published by the journal in March 2005 says that such risk could arise after as few as three months. Merck & Co., the maker of Vioxx, has defended the claims brought against the company in part by pointing to the orginal study conclusions that there is no heart risk from short-term use. In the six cases tried thus far, juries have returned verdicts for Merck three times. Despite the journal's corrected interpretation of study results, Merck says it stands behind the original study and will defend each Vioxx suit. However, this news must favor plaintiffs in Vioxx litigation. Two Vioxx trials are presently underway in Los Angeles and Atlantic City. See Diedtra Henderson's story in the Boston Globe.
June 24, 2006
Tennessee Court of Appeals Affirms $7 Million Damages Award in Paralpegia Case
In Potter v. Ford Motor Co., 2006 WL 1698971 (Tenn. Ct. App. June 21, 2006), the Tennessee Court of Appeals affirmed a trial court judgment of $10 million for the plaintiff in a products liability case arising out of the crash of a 1997 Ford Escort in which the plaintiff was rendered a paraplegic. The jury found the plaintiff to be 30% at fault in the accident and Ford 70% at fault. The accident occurred when the plaintiff lost control of her car while driving at a moderate speed on a rain-slick road. The car spun around and crashed into a tree. The plaintiff’s seat back collapsed into the rear seat and she submarined into the seat, suffering the spinal cord injuries that resulted in paraplegia. Under the Tennessee Products Liability Act, Tenn. Code. Ann. § 29-28-101 (a), a plaintiff is required to prove that the product in question is "in a defective condition or unreasonably dangerous" when it left the manufacturer’s or seller’s control. In her amended complaint the plaintiff abandoned her theory that the car was "unreasonably dangerous," alleging instead that the car "was defective when put to a use reasonably anticipated in that [t]he seat was designed and manufactured of inadequate strength to prevent its collapse in a foreseeable condition." Section 29-28-101 (b) of the Act provides that in deciding whether a product is in a defective condition, "the state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market, rather than at the time of injury, is applicable," and that "[c]onsideration is given also to the customary designs, methods, standards and techniques of manufacturing, inspecting and testing by other manufacturers or sellers of similar products." Ford argued on appeal that to prove a prima facie case, the plaintiff is required to prove "the availability of a technologically feasible and practical alternative design that would have reduced or prevented the plaintiff’s harm," citing Martin v. Michelin North America, Inc., 92 F. Supp. 2d 745, 753, (E.D. Tenn. 2000), and that the plaintiff’s expert’s testimony did not prove a defect as a matter of law because his data showed a slightly increased risk of injury for persons in a certain weight range in lower speed collisions. The court of appeals acknowledged that Martin made the feasible alternative design statement and that the court in Martin relied on Restatement (Third) of Torts: Products Liability § 2, comment f, but the court of appeals noted that no subsequent Tennessee case has taken that position. The court concluded that the trial court was correct in refusing to grant Ford’s motion for judgment notwithstanding the verdict and that there was "abundant material evidence supporting" the jury’s finding of defectiveness.
Ford also argued that it was error to refuse its requested instruction on intervening cause. Ford argued that the plaintiff’s own admittedly negligent conduct in losing control of her car was an intervening, superseding cause because of the unusual nature of the accident in which "a seriously overweight plaintiff [was] driving n the rain on badly worn tires, [lost] control of the car and collided] backwards into a tree at roughly 30 miles per hour." The court of appeals rejected the argument, in part because of the inapplicability of the superseding cause doctrine in a case involving a single plaintiff and defendant, in part because the fact that the jury was fully instructed on foreseeability and proximate cause and the jury rejected Ford’s position, and in part because the comparative fault finding subsumed the superseding cause issue.
June 23, 2006
Ohio Damages Cap Certified to Ohio Supreme Court
Judge David Katz of the United States District Court in Toledo, Ohio, has asked the Ohio Supreme Court to determine the legality of Ohio's cap on noneconomic and punitive damages in civil lawsuits because of its impact on a suit currently before him by plaintiffs against Ortho Evra, alleging that its birth control patch caused serious side effects or death. Pursuant to its certification rule, Rule 18, section 1 of the Ohio Supreme Court Practice Rules, the supreme court is not obligated to decide the issue, however, and there is no specified time period in the rule for the court to decide whether to accept the certified issue for decision. The case has raised expectations of a speedy resolution of the damages cap issue. The Ohio General Assembly has passed two damages caps laws in recent years. One, applicable to medical malpractice claims, caps noneconomic damages at $1 million in catastrophic cases and $500,000 in less severe cases. The second law, Ohio Rev. Code Ann. 2315.18 (b)(2), which is the one involved in Judge Katz's case, was adopted by the Assembly in 2004. It limits jury awards for pain and suffering and other intangible, noneconomic damages in noncatastrophic injury cases in products liability, personal injury, and other civil suits, to $350,000 per person, subject to a $500,000 limit per occurrence. Although the Ohio Supreme Court has previously held damages caps unconstitutional, a change in the composition of the court has raised expectations that the result will be different if the court reviews the new damages cap. An interesting aspect of the commentary is the labeling of judges as Democrats or Republicans in speculating on the court's possible resolution of the case. Commentary in toledoblade.com, by Luke Shockman and Jim Provance. For a good discussion of the caps issue and a detailed analysis of Ohio law on the issue, see Robert S. Peck, Violaing the Inviolate: Caps on Damages and the Right to Trial by Jury, 31 U. Dayton L. Rev. 307 (2006). WL
Must Paint Manufacturers Get the Lead Out?
The California Supreme Court has refused to review a ruling by the state's court of appeal that reinstated public nuisance, strict liability, negligence and fraud claims in a suit brought in 2000 by several Bay Area cities, counties and public agencies. The suit seeks to make lead paint manufacturers liable for the costs of abatement both inside and outside countless public and private buildings at a cost that may amount to billions of dollars.
The trial court had granted the manufacturers' motion for summary judgment in 2003. But the court of appeal ruled that the manufacturers could be held liable because of their "affirmative promotion of lead paint for interior use, not their mere manufacture and distribution." The intemediate appellate court also ruled that the three-year statute of limitations did not begin to run until 1998 when scientific studies showed that even low levels of exposure could cause serious harm.
The defendants argue that property owners, not paint manufacturers, are responsible for maintaining properties in a lead-safe condition given what they knew or should have known about the hazards of lead paint. They also that the ruling permits "unfettered extension of the . . . public nuisance . . . cause of action" to any product sold lawfully but which a public entity now seeks to have declared a nuisance. See the story by Mike McKee in The Recorder.
June 20, 2006
DuPont, Plaintiffs Both Plan Appeal of $113 Crop Loss Verdict
Both sides plan to appeal a Florida jury's verdict awarding $113 million to 27 Costa Rican growers whose fern crops were damaged by use of DuPont's fungicide, Benlate DF. The jury also found between 45 and 50 percent comparative negligence on the part of the plaintiffs, reducing the damages award to between $50 million and $60 million. The plaintiffs will appeal the jury's decision not to award damages for future crop loss, claiming that Benlate permanently damaged the ferns, used in decorative floral arrangements, at the cellular level so that their value is destroyed for the entire crop life of several years. DuPont believes that the verdict is against the weight of the evidence and hopes for a reversal on appeal such as that obtained in the appeal in 2001 of a similar Benlate case in Florida. Euro Flores S.A. v. E.I. duPont de Nemours & Co., Fla. Cir. Ct., No. 01-23796 CA 23, verdict May 17, 2006.
June 16, 2006
Second Chance Yields $13.5 Million Verdict
A Dallas, Texas, jury awarded $13.5 million to the survivors of a man who contracted an asbestos-related cancer many years after exposure to a joint-compound product manufactured by Georgia-Pacific Corp. The plaintiffs had won a $9.3 million verdict in March 2005 but the trial judge, concerned about the way the jury had calculated punitive damages, gave the plaintiffs the choice of accepting a reduced award or a new trial. A new trial turned out to be a good decision. The defendants promise to appeal, believing that the plaintiff was exposed to asbestos in the products of other companies. See Greg Land's story in the Fulton County Daily Report.
June 15, 2006
FDA Approval of Warning Does Not Preempt State Tort Claims
A federal judge in Nebraska has ruled that the FDA's new labelling rule does not preempt state tort failure-to-warn claims. The ruling is contrary to one made only five days ealier by a federal district court in Pennsylvania which found that the FDA regulations are preemptive of failure to warn claims. In the Nebraska case, the parents of a child who committed suicide sued Pfizer and Wyeth Pharmaceuticals. Their son had been prescribed anti-depressants manufactured by both companies. Although the drugs were accompanied by a warning of suicide risks, the plaintiff's claimed that the warning was inadequate. Noting that several courts have found the FDA regulations establish only minimum standards, do not require manufacturer's to seek FDA approval before strengthening warnings, and that state tort law complements the federal regulatory scheme, Judge Joseph F. Bataillon concluded that the FDA's recent pronouncement that its labelling regulations were preemptive is not persuasive. Jackson v. Pfizer, 2006 WL 1506886, D. Neb., May 31, 2006.
June 13, 2006
Lipitor Suit Dismissed - Expert's Theory Not Scientifically Reliable
The federal district court for the Northern District of Indiana dismissed a plaintiff's claim against Pfizer that her use of the company's drug Lipitor caused her vision loss. The plaintiff claimed that her use of Lipitor caused damage to the optic nerve resulting in bluriness and partial vision loss in one eye. However, the court concluded that the plaintiff's proferred expert, a neuro-opthalmologist, had not based her opinion on any valid scientific methodology - particularly epidemiology, toxicology, or pharmacology. Nor had the expert conducted any scientific tests or relied on any such studies to verify her conclusions. Therefore, ruled Judge Theresa L. Springer, the expert's opinion was an "untested hypothesis" and insufficiently reliable as evidence. Bickel v. Pfizer, 2006 WL 1390153, N.D. Ind., May 19, 2006.
June 12, 2006
Pfizer Sued Over Inadequate Lipitor' Warnings
According to an Associated Press story, two users of Lipitor, the most popular cholesterol-lowering medication, have brought suit in New York against Pfizer, its manufacturer, claiming that their use of the drug caused side effects of which they were not warned. One man claims that the drug caused "debilitating pain, weakness, and memory problems." The other claims that he suffered from neuropothy after using the drug. Pfizer called the suits "baseless," saying that it has adequately warned of all potential side effects and cautions users to "tell your doctor if you feel any new muscle pain or weakness. This could be a sign of rare but serious muscle side effects."
Dr. Robert Eckel, the President of the American Heart Association, says that the benefits of using Lipitor substantially outweigh its risks.
June 10, 2006
Merck Moves to Dismiss California Vioxx Suit
Merck has moved to dismiss the first Vioxx case scheduled to go to trial in California on statute of limitations grounds. The case was filed by a 73-year-old man who had a heart attack after taking the pain reliever. It is among 1800 Vioxx suits filed against the company in California.
A recent study published last month in the Canadian Medical Association Journal found that Vioxx users suffered a risk of heart attack after only two weeks of use. Merck's own earlier study indicated that the risk does not arise until the drug has been used for 18 months.
A recent $32 million jury verdict was rendered against Merck in Texas in the case of a 71-year-old man who died after taking Vioxx for less than a month. It was the first verdict against the company in a case involving use of the drug for a short period of time. See the story by Amanda Bronstad in The National Law Journal.
June 7, 2006
Asbestos Bankruptcy Firm Must Return $9.7 Million in Fees
The Washington, D.C. firm of Gilbert, Heintz & Randolph has been ordered by the U.S. Bankruptcy Court for the District of New Jersey to disgorge approximately $9.7 million in legal fees it earned representing flooring manufacturer Congoleum Corp. in asbestos bankruptcy proceedings. The Bankruptcy Court ordered the fees returned to Congoleum after a federal appeals court found that the firm violated conflict-of-interest rules by simultaneously representing Congoleum and thousands of plaintiffs who had asbestos claims against that company in bankruptcy proceedings.
In a hearing on a motion to stay the disgorgement order, a lawyer representing the firm said that GHR had $2.3 million in liquid assets and that, if the judgment were executed immediately, it could drive the firm out of business and "potentially into bankruptcy." According to Alexia Garamfalvi's story for Legal Times, the firm's chairman said, however, that he doesn't think it will come to that and that settlelment negotiations are underway.
June 6, 2006
FDA Approval of Warning Preempts State Tort Claims
A suit on behalf of a woman who committed suicide after taking a generic version the anti-depressant Paxil, has been dismissed by a Pennsylvania federal district court. The plaintiff claimed that the drug was defective for failure to warn of suicide risks associated with its use. The court ruled that the FDA strictly controls the contents of such warnings, did not require such a warning at the time, and that the claim was therefore preempted by the Food, Drug and Cosmetic Act.
The plaintiffs argued that the FDCA sets only minimum standards for warnings and permits drug manufacturers to unilaterally strengthen such warnings. The defendants, supported by the FDA, argued that at the time the plaintiff alleged that a warning should have been given there was not reasonble evidence of an association between use of the drug and suicidality. Such a warning would have been false and misleading and thus contrary to federal law, according to the FDA's brief.
The court agreed, saying that "we must afford deference to the FDA's position that the claims are pre-empted." See Shannon Duffy's story in The Legal Intelligencer.
June 5, 2006
Asbestos Bill Adds Claims for 9/11, Katrina
Language has been added to the Senate version of the bill designed to create a compensation fund for asbestos injury victims that would allow claims to be filed by those exposed to asbestos when the World Trade Center collapsed in New York and by people exposed to building debris resulting from the Gulf Coast hurricanes. The $140 billion dollar fund would mainly pay claims resulting from occupational exposure, would be funded for the most part by companies that made or sold asbestos and their insurers, and would eliminate the right to sue those companies for asbestos-related injuries.
Years of effort have yet to result in a decision on whether to create an asbestos injury compensation fund. Some see this latest development as an effort to increase political support for the fund but others are concerned that the prospect of additional claimants raises a very real possibility of bankrupting the fund before all claims are compensated. See the story by Susan Cornwall for Reuters.
June 1, 2006
CPSC Is After Amateur Chemists
Anti-meth and anti-fireworks legislation is having a chilling effect on amateur chemists and the sale of chemicals that can be used illegally. "We have turned our attention to the chemical components used in the manufacture of illegal fireworks, which can cause amputation and death," announced a Consumer Product Safety Commission spokesperson. An article in Wired magazine says that a 2004 study by the CPSC found that two percent of fireworks-related injuries that year were caused by homemade or altered fireworks; the majority (presumably the subject of products liability suits) involved the mishandling of commercial firecrackers, bottle rockets, and sparklers. The CPSC has "fostered a very close relationship with the Justice Department and we're out there on the Internet looking to see who is promoting these core chemicals. Fireworks is one area where we're putting people in prison."
Talk about taking the fun out of the Fourth of July!